Jaear Williams v. Plymouth County District Attorney's Office (SPR 20180824)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 20, 2018 SPRlS/824 Gail McKenna, Esq. Assistant District Attorney- Records Access Officer Plymouth County District Attorney's Office 166 Main Street Brockton, MA 02301 Dear Attorney McKenna: I have received a petition from Jaear Williams appealing the response from the Plymouth County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Mr. Williams made a public records request on April 22, 2018 to the DAO requesting all records related to case docket No. 103080 & 103081. The DAO provided a response on April 30, 2018 stating the requested information "[i]n regards to the police reports, Criminal Offender Record Information (CORI), is exempt from disclosure" and also cited Exemption (f) for the withholding of documents. Mr. Williams appealed the DAO's response to this office on June 4, 2018. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § lO(b )(iv). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Gail McKenna, Esq. SPR18/824 Page2 June 20, 2018 The DAO has cited the CORI Act, G. L. c. 6, § 167, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information ... Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration G. L. C. 6, § 167. Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 3 71 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90.

Gail McKenna, Esq. SPR18/824 Page 3 June 20, 2018 Appeal Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) ( written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The DAO stated "[u]nder G.L. c. 4, § 7(26)(f), witness statements are exempt from disclosure under the public records law." To the extent the records contain information identifying voluntary witnesses, the identifying information may be withheld. See Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). However, the DAO did not meet its burden to provide the specific reasons for withholding the records in their entirety pursuant to Exemption (f). See G. L. c. 66, § 1O (b )(iv); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In particular it is not clear what is depicted, or how disclosure would "prejudice effective law enforcement" as required by Exemption (f). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Conclusion Accordingly, the DAO is ordered to review the requested records, redact where necessary and produce responsive records in its possession in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Jaear Williams